Citation Nr: 0519688
Decision Date: 07/20/05 Archive Date: 08/03/05
DOCKET NO. 03-27 897 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUE
Whether new and material evidence has been received to reopen
a claim for entitlement to service connection for a right
shoulder disorder.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
WITNESSES AT HEARING ON APPEAL
The appellant and his wife, D.M.
ATTORNEY FOR THE BOARD
Rhonda M. Kauf, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1991 to March
1994. This matter comes before the Board of Veterans'
Appeals (BVA or Board) on appeal from August 2002 and October
2002 rating decisions of the Department of Veterans Affairs
(VA) Regional Office (RO) in Houston, Texas.
As to the issue currently on appeal, the Board will grant the
veteran's application to reopen his claim for service
connection based upon the receipt of new and material
evidence. The Board will remand, however, the merits of this
claim to the RO via the Appeals Management Center (AMC) in
Washington, D.C., for the completion of additional
development prior to any further review on appeal.
Additionally, in April 2002 and September 2003 statements of
record, the veteran has reported his belief that his right
shoulder disorder is related to his service-connected low
back disability, thus raising a claim of secondary service
connection per 38 C.F.R. § 3.310 (2004). As this issue has
not yet been adjudicated, the Board refers it back to the RO
for appropriate action in conjunction with de novo review of
the claim for service connection for a right shoulder
disorder.
FINDINGS OF FACT
1. An unappealed July 1996 rating decision denied
entitlement to service connection for a right shoulder
disorder.
2. Evidence associated with the claims folder since the July
1996 rating decision is not cumulative or redundant of
evidence previously of record, relates to an unestablished
fact necessary to substantiate the claim, and presents a
reasonable possibility of substantiating the claim.
CONCLUSIONS OF LAW
1. The July 1996 rating decision that denied entitlement to
service connection for a right shoulder disorder is final.
38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104,
20.302, 20.1103 (1996) [38 U.S.C.A. § 7105 (West 2002);
38 C.F.R. § 20.200 (2004)].
2. Evidence associated with the claims folder since the July
1996 rating decision is new and material, and the
requirements to reopen the claim for entitlement to service
connection for a right shoulder disorder have been met.
38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VA's Duties to Notify and Assist
Effective November 9, 2000, the Veterans Claims Assistance
Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A, 5106, 5107, 5126 (West 2002), eliminated the
concept of a well-grounded claim and redefined the
obligations of VA with respect to its duties to notify and
assist a claimant. In August 2001, VA issued regulations to
implement the VCAA, now codified at 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a) (2004).
The VCAA and its implementing regulations provide that VA
will assist a claimant in obtaining evidence necessary to
substantiate a claim, but VA is not required to provide
assistance to a claimant if there is no reasonable
possibility that such assistance would aid in substantiating
the claim. VA must also notify the claimant and the
claimant's representative, if any, of any information, and
any medical or lay evidence, not previously provided to the
Secretary that is necessary to substantiate the claim. As
part of the notice, VA is to specifically inform the claimant
and the claimant's representative, if any, of which portion,
if any, of the evidence is to be provided by the claimant and
which part, if any, VA will attempt to obtain on behalf of
the claimant. VA must also ask the claimant to provide any
other evidence in his or her possession that might support
the claim. See Pelegrini v. Principi, 18 Vet. App. 112
(2004) (Pelegrini II); see also Mayfield v. Nicholson, No.
02-1077 (U.S. Vet. App. April 14, 2005).
The United States Court of Appeals for Veterans Claims
(Court) has mandated that VA ensure strict compliance with
the provisions of the VCAA. See Quartuccio v. Principi, 16
Vet. App. 183 (2002).
In this decision, the Board reopens the veteran's claim of
entitlement to service connection for a right shoulder
disorder, a determination that is entirely favorable to the
veteran. As such, no further action is required to comply
with the VCAA and its implementing regulations as to the
veteran's application to reopen his claim. The Board will
defer, however, addressing the merits of the claim for
service connection (including VCAA compliance) pending
further development as set out in the REMAND following this
decision.
Analysis of the Request to Reopen the Claim for Service
Connection
There has recently been a regulatory change regarding VA's
definition of what constitutes "new and material evidence."
This change applies prospectively to all requests to reopen
that are made on or after August 29, 2001. See 66 Fed. Reg.
45,620-30 (Aug. 29, 2001) [now codified at 38 C.F.R. §
3.156(a) (2004)]. Because the record indicates that the
veteran filed his request to reopen this claim after that
date (in February 2002), this regulatory change is applicable
to this appeal.
The veteran's claim for service connection was originally
denied in a July 1996 rating decision. As the veteran did
not appeal this decision, it subsequently became final. 38
U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302,
20.1103 (1996) [38 U.S.C.A. § 7105 (West 2002);
38 C.F.R. § 20.200 (2004)].
As noted, in February 2002, the veteran filed a request to
reopen his claim for service connection for a right shoulder
disorder. In an August 2002 rating decision, the RO declined
to reopen the claim. In an October 2002 rating decision, the
RO reopened the claim, but again denied the veteran
entitlement to service connection on the merits. The veteran
then timely appealed this matter to the Board.
The Board must make its own determination as to whether any
newly received evidence warrants a reopening of the veteran's
claim. This is important because the preliminary question of
whether a previously denied claim should be reopened is a
jurisdictional matter that must be addressed before the Board
may consider the underlying claim on the merits. Barnett v.
Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996).
If new and material evidence is presented or secured with
respect to a claim that has finally been disallowed, the
claim shall be reopened and reviewed. See 38 U.S.C.A. § 5108
(West 2002); 38 C.F.R. § 3.156 (2004). When a claimant seeks
to reopen a final decision, the first inquiry is whether the
evidence presented or secured since the last final
disallowance of the claim is "new and material." When
determining whether the claim should be reopened, the
credibility of the newly received evidence is to be presumed.
Justus v. Principi, 3 Vet. App. 510 (1992). In order for
evidence to be sufficient to reopen a previously disallowed
claim, it must be both new and material. If the evidence is
new, but not material, the inquiry ends and the claim cannot
be reopened. See Smith v. West, 12 Vet. App. 312, 314
(1999).
New evidence is now defined as existing evidence not
previously submitted to agency decisionmakers. Material
evidence means existing evidence that, by itself or when
considered with previous evidence of record, relates to an
unestablished fact necessary to substantiate the claim.
New and material evidence can be neither cumulative or
redundant of the evidence of record at the time of the
last prior final denial of the claim sought to be
reopened, and must raise a reasonable possibility of
substantiating the claim. 38 C.F.R. § 3.156(a).
In support of the veteran's request to reopen his claim,
several new documents, including additional service treatment
and VA medical records, have been associated with the claims
folder since the RO's prior final rating decision issued in
July 1996. These documents were not available to or
evaluated by agency decisionmakers in the past. Accordingly,
the Board finds these documents to be new evidence. As
noted, however, this does not end the inquiry, as the Board
must still determine whether any of this new evidence is also
material.
To that end, the Board finds that, at the least, additional
May 1991 and September 1992 service treatment records
submitted by the veteran in April 2002 are material to his
claim. Information contained in these reports shows the
veteran's in-service reports for treatment of shoulder
problems. The Board finds that these records constitute
material evidence relating to an unestablished fact necessary
to substantiate the claim, namely, as to whether the veteran
developed a right shoulder disorder during active service.
Furthermore, these records are not cumulative or redundant of
evidence previously of record, and certainly raise a
reasonable possibility of substantiating the claim. In the
prior final rating decision on this matter, the RO stated
that service connection for a right shoulder disorder was
denied because there was no record of treatment in service
for such a condition. These May 1991 and September 1992
service treatment records, however, provide support for such
a finding. 38 C.F.R. § 3.156(a).
In addition, while not explicitly addressed in the July 1996
rating decision, the record at that time did not contain
medical evidence of a current right shoulder disorder; to
that end, the VA treatment reports associated with the claims
file subsequent to that decision do include recorded current
diagnoses concerning the veteran's right shoulder. Thus, the
information contained in these records is also new and
material, relates to another unestablished fact necessary to
substantiate the claim (current disability), is not
cumulative or redundant of prior evidence of record, and
raises a reasonable possibility of substantiating the claim.
Id.
The Board therefore holds that new and material evidence has
been received to support a reopening of the veteran's claim.
The underlying claim for entitlement to service connection
for a right shoulder disorder, however, will be remanded to
the RO at this time, for the completion of additional
development prior to any further appellate review.
ORDER
New and material evidence having been received, the appeal to
reopen the claim for entitlement to service connection for a
right shoulder disorder is granted; to that extent only, the
appeal is allowed.
REMAND
In February 2002 and September 2003 statements of record, as
well as in testimony provided to the Board in January 2005,
the veteran indicated that he has experienced regular right
shoulder pain and problems from active service to the
present. He also relates, as noted in an April 2002
statement, that he has received treatment for his right
shoulder at VA's outpatient clinic (OPC) in Lufkin, Texas,
since May 1991. A review of the veteran's VA treatment
reports of record, however, reveals that there are no such
reports dated earlier than January 1996. (The Board further
notes that some of these early reports from the Lufkin VAOPC
were provided by the veteran in support of a claim involving
his service-connected low back disability, and therefore
additionally may not represent the entirety of his treatment
record at this facility at the time.) Moreover, the veteran
also stated in September 2003 that during his early post-
service treatment, he did relay right shoulder problems to
his treating medical practitioner at the Lufkin VAOPC, and
that that individual did, at a minimum, send him for X-ray
evaluation on more than one occasion.
In light of the above, the Board finds that the RO must
ensure that all of the veteran's right shoulder evaluation
and treatment records from the Lufkin VAOPC, especially those
dated from approximately May 1991 to January 1996, are
obtained for this claim, if possible. Records generated by
VA facilities that may have an impact on the adjudication of
a claim are considered to be constructively in the possession
of VA adjudicators during the consideration of a claim,
regardless of whether those records are physically on file.
Thus, the aforementioned records should be obtained for
consideration in this appeal. See 38 C.F.R. § 3.159(c)(1)
(2004); Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell
v. Derwinski, 2 Vet. App. 611 (1992); VAOPGCPREC 12-95.
Moreover, at his January 2005 Travel Board hearing, the
veteran's wife stated that his VA occupational therapist
(noted as J.A.T. in records from the VA Medical Center (VAMC)
in Houston, Texas, dated beginning in approximately
February 2004) verbally opined that his current right
shoulder problems are related to his reported in-service
injury. The veteran should be afforded the opportunity to
obtain and submit a medical statement from this practitioner.
38 C.F.R. § 3.159(c) (2004).
Additionally, the veteran should be afforded a new VA
examination in order to obtain a new nexus opinion based upon
consideration of all pertinent evidence of record. 38 C.F.R.
§ 3.159(c)(4) (2004).
Accordingly, this matter is REMANDED for the following:
1. The RO should send the veteran a
letter containing all VCAA notice
obligations pertaining to the claim for
entitlement to service connection for a
right shoulder disability, including
secondary to the service-connected low
back disability in accordance with
Quartuccio v. Principi, 16 Vet. App. 183
(2002), 38 U.S.C.A. §§ 5102, 5103, and
5103A (West 2002), and 38 C.F.R. § 3.159.
Specifically, the veteran should be
informed of the information and evidence
required to substantiate the claim, and
advised of the division of
responsibilities between him and VA in
obtaining evidence in support of the
claim. He should also be requested to
send any evidence in his possession,
pertinent to the appeal, to VA.
2. The RO should contact the VAOPC in
Lufkin, Texas, station number 580, in
order to obtain the veteran's complete
record of treatment for right shoulder
problems since May 1991. Specifically,
all right shoulder treatment records
dated from May 1991 to January 1996 must
be associated with the claims file, if
possible.
3. The veteran should be afforded the
opportunity to submit a medical statement
from J.A.T., O.T.R., at the VAMC in
Houston, Texas.
4. After the above development has been
accomplished, the veteran should be
scheduled for a VA joints examination to
ascertain the etiology of any currently
diagnosed right shoulder disorder. The
claims folder should be made available to
the examiner for review before the
examination. After a review of the file
and a thorough examination, the examiner
should provide a written medical opinion
as to whether any of the veteran's
currently diagnosed right shoulder
problems are at least as likely as not
(i.e., a 50 percent likelihood or
greater) related to an incident or injury
in service; or is proximately due to or
aggravated by the service-connected low
back disability.
5. After the RO completes all of the
development requested above to the extent
possible, the claim for service
connection for a right shoulder
disability, including secondary to the
service-connected low back disability
should be readjudicated on the basis of
all additional evidence associated with
the claims file. If the RO cannot grant
the benefit sought on appeal, then it
should furnish the veteran and his
representative with a supplemental
statement of the case, and afford a
reasonable opportunity for response
before returning the record to the Board
for further review.
The purpose of this REMAND is to obtain additional
development, and the Board does not intimate any opinion as
to the merits of the case, either favorable or unfavorable,
at this time. The veteran is free to submit any additional
evidence and/or argument he desires to have considered in
connection with his current appeal. See Kutscherousky v.
West, 12 Vet. App. 369 (1999). No action is required of the
veteran, however, until he is so notified.
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the Court for additional development or other appropriate
action must be handled in an expeditious manner. See The
Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a),
(b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C.A. §§
5109B, 7112).
______________________________________________
SUSAN J. JANEC
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs